Patterico's Pontifications

12/1/2017

Lawsplainer: The California Homicide Statutes Relevant to the Steinle Murder Case

Filed under: General — Patterico @ 7:22 am



Hey Patterico!

Yes?

I have some questions about the Kate Steinle murder case.

Go away. Ken White from Popehat has a patent on the cutesy device of having an annoying interlocutor introduce a lawsplainer.

Are you sure you don’t mean a copyright? I thought a patent applied to —

I said GO AWAY.

Fine. Ken is more fun than you anyway.

I’m seeing a lot of confusion online about homicide laws in California and how they might have applied to the case of Jose Ines Garcia Zarate, who was acquitted of murdering Kate Steinle. I’m not an expert on the facts of the Zarate murder case, but I know a little something about the law of murder, and I thought it might be helpful to the debate to put some of the concepts into basic English. (As always, I speak as a private citizen, and not for my office.)

This is hardly a comprehensive discussion of the law of homicide. It’s just an effort to clear up some confusion as it relates to this case. Also: I am not a criminal defense lawyer, and I am not your lawyer. This is not legal advice on how to kill someone and get away with it, or indeed on any topic at all. It’s just a discussion of legal principles as applied to a case of public interest.

Probably the first thing to explain here is that this was not a “felony murder” case. The term “felony murder” does not mean “any killing that occurs when the defendant is committing any felony.” So the fact that Zarate was committing the crime of “felon in possession of a firearm” does not make this homicide a murder, simply because it occurred in the course of that felony.

I could spend a lot of time explaining the ins and outs of felony murder, but that would be pointless because, again, this is not a felony murder case. Plus, felony murder law is very complicated, with a lot of subtleties and rules. All you need to know is that it has nothing to do with this case.

I see some people complaining about prosecutors “charging first-degree murder” in the Zarate case. In California, prosecutors don’t “charge” first-degree or second-degree murder. The charging document reads simply “murder.” The judge will instruct on first-degree and/or second-degree murder and/or lesser included offenses of manslaughter, based on the evidence presented in the case, and how that evidence fits the law. None of these lesser included offenses have to be charged for the jury to consider them.

When I try a murder case (and I have tried about thirty-five of them), with rare exceptions (like a felony-murder case, which this is not; see above) I typically start by explaining what second-degree murder is. Murder does not necessarily require an intent to kill. It is an unlawful killing of a human being with “malice aforethought.” This state of mind could be intent to kill, but it could also be intentionally committing an act, the natural and probable consequence of which is dangerous to human life, with knowledge that the act is dangerous to human life, and with conscious disregard for human life.

That sounds like a lot of legal mumbo-jumbo, so let’s make it simple: if I stab you in the neck, or point a loaded gun at you and deliberately pull the trigger, I know I could easily kill you. But what if I’m not trying to kill you? What if I just don’t care? Too bad. It’s still murder: namely, murder of the second degree.

You need something extra to get to first-degree murder. Usually, this is accomplished by proof that the murder was “willful, deliberate, and premeditated.” Here, unlike second-degree murder, you do have to have an intent to kill — “I don’t care if the victim dies” doesn’t cut it. You also have to make the decision to kill before acting, and do some amount of weighing the decision beforehand.

If Zarate had pointed a gun at Kate Steinle and willfully pulled the trigger, knowing that act could kill her, he would have been guilty of at least second-degree murder. If he had intended to kill her and acted with premeditation and deliberation, he would have been guilty of first-degree murder. The jury clearly didn’t buy either scenario, which (as Sarah Rumpf explained earlier) is hardly shocking, given that the single fatal shot ricocheted off of the ground, and the interview of the defendant did not clearly establish that he pulled the trigger (as opposed to discharging the gun accidentally).

But what about this idea that he was negligent? This is what seems to outrage people: surely this was at least criminally negligent homicide!

Here’s the thing, though: “criminally negligent homicide” does not mean “the defendant was negligent, and hey, somebody died which makes it a crime, therefore, he was criminally negligent.” That’s not how it works. There are definitions that apply.

In California, when you talk about “criminally negligent homicide” you’re talking about a crime called “involuntary manslaughter.” It’s the crime that Michael Jackson’s doctor was charged with, for administering a fatal dose of propofol. The crime requires that the defendant do a crime, or a lawful act in an unlawful manner, that caused someone’s death, with criminal negligence.

So what is criminal negligence in California? The instructions that a judge reads to jurors say, in part:

Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when:

1. He or she acts in a reckless way that creates a high risk of death or great bodily injury;

AND

2. A reasonable person would have known that acting in that way would create such a risk.

In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.

I have added some hopefully helpful bold type here. But hopefully the distinction is clear. On one hand, you have ordinary carelessness or an accident. This is not criminal. On the other hand, you have recklessness that is so different from usual care that the person is essentially indifferent to human life. That’s what rises to the level of criminal negligence. Put another way: criminal negligence is not just any negligence that results in death. It’s a reasonably high standard, as befits a criminal statute that carries prison time as a consequence for its violation.

Merely picking up a gun and having it accidentally go off is unlikely to be found to be criminally negligent. Waving it around or brandishing it is closer to the type of behavior that this crime targets.

Again, the jury looked at the factors in the Zarate case, including the fact that the weapon involved is prone to accidental discharge, the ricochet off the ground, and the ambiguous nature of the admissions made in Zarate’s interview. Based on those factors and others, they decided that Zarate’s actions were not so egregious to amount to indifference to human life. They may have thought it was an accident, and/or that he was careless but not reckless.

Was that irrational? I didn’t see the trial, but based on the publicly known facts, I can’t say that it necessarily was. This is not like the OJ case, where evidence of murder is overwhelming and clear. This was a tough case.

The other complaint I see is criticism of the prosecutors for overreaching. With a single shot bouncing off the ground, premeditation is a stretch, and they may have cost themselves some credibility with an overly aggressive theory of premeditation. But again, I didn’t see the trial, and I know how easy it is to second-guess prosecutorial tactics from the outside. My gut tells me that prosecutors were handed a flawed case with a bad interview. Once the defendant has a lawyer appointed, deficiencies in the interview will never be clarified. I’m reluctant to play armchair quarterback from the comfort of my living room.

There’s plenty to be angry about here. San Francisco’s self-righteous sanctuary city policy clearly cost Kate Steinle her life. The man who handled the gun that shot her had no business being on the streets of San Francisco. He should have been deported, yet again. But thanks to leftist lawmakers, he wasn’t, and a beautiful young woman died as a result.

But that fact alone does not make this verdict wrong. Once you understand the law, it’s easy to see that the verdict may well have been correct.

The only undeniable crime here was committed by San Francisco leftist policymakers. If anyone needs to be held accountable now, it’s them.

UPDATE: If you’re looking for a ray of hope from the criminal justice system, this may be it:

[Cross-posted at RedState and The Jury Talks Back.]

173 Responses to “Lawsplainer: The California Homicide Statutes Relevant to the Steinle Murder Case”

  1. After not guilty verdict, official says Justice Dept. may pursue charges against Steinle defendant

    http://abc7news.com/after-verdict-official-says-justice-dept-may-pursue-charges-against-steinle-defendant/2719686/

    harkin (bd8145)

  2. That sounds like a lot of legal mumbo-jumbo, so let’s make it simple: if I stab you in the neck, or point a loaded gun at you and deliberately pull the trigger, I know I could easily kill you. But what if I’m not trying to kill you? What if I just don’t care? Too bad. It’s still murder: namely, murder of the second degree.

    Jury instructions clear as mud? Jurors do their best to apply legal standards and in my experience it makes all the difference.

    Admiral Ben burn (b3d5ab)

  3. this was not a “felony murder” case.

    yes yes felonies in San Francisco courts are more like this

    On March 28, 2017, California Attorney General Xavier Becerra filed 15 felony charges against Daleiden, alleging that he and associate Sandra Susan Merritt were guilty of conspiring to pose as BioMax employees in order to intentionally record confidential communications between themselves and Planned Parenthood employees in Century City (Los Angeles), Pasadena (Los Angeles), El Dorado (El Dorado), and San Francisco.

    happyfeet (28a91b)

  4. Yes only a case sprinkled liberally with larks vomit, from fusion gps qualifies

    narciso (d1f714)

  5. Andrew McCarthy is technically correct, but the DOJ policy on prohibited persons in possession of firearms is also hands-off, even when it does not involve successive prosecutions, if there are adequate state laws being enforced by local law prosecutors.

    nk (dbc370)

  6. Thanks, Patrick, I had wondered about the criminal negligence angle too. Without reading the transcript I can’t really say it was applicable, but I think as a juror I would have leaned towards that. I’m not sure if the jury was instructed so. And I don’t know the composition of the jury either, which might explain this verdict somewhat.

    My heart just breaks for the family. Again.

    As Guy Benson said, “I’m sure deportation #6 will do the trick.”

    Patricia (5fc097)

  7. local law prosecutors

    nk (dbc370)

  8. I like that ray of hope, and it seems like more than a hope. He’s been convicted of being a felon in possession.

    DRJ (15874d)

  9. I submit the state law enforcement isn’t adequate in this case, nk, given that Garcia has already served the time for his conviction and he remains an habitual deportation offender.

    DRJ (15874d)

  10. Great post. Thank you, P.

    DRJ (15874d)

  11. Breaking- “The Art Of The Deal”: Former Trump NSA Flynn pleads guilty to lying to FBI.

    “That would put you inside the White House.” – ‘Deep Throat’ [Hal Holbrook] ‘All The President’s Men’ 1976

    DCSCA (797bc0)

  12. Kushner finally shows emotion

    Admiral Ben burn (b3d5ab)

  13. Zarate said he was high on pot and pills when he picked up the gun. I argue res ipsa loquitor, the thing speaks for itself.

    AZ Bob (f60c80)

  14. Stellar posting, Patterico.

    One of your best in years.

    DCSCA (797bc0)

  15. Zarate didn’t know it was a gun the same way Franken didn’t know it was a grope.

    AZ Bob (f60c80)

  16. Even had he been convicted of involuntary manslaugher, he might have time served by now.

    Patterico (885b2a)

  17. 16. You’re forgetting the symbolism

    Admiral Ben burn (b3d5ab)

  18. I must add that guns do not go off by themselves. A typical trigger pull of six pounds is significant.

    AZ Bob (f60c80)


  19. 16.Even had he been convicted of involuntary manslaugher, he might have time served by now.

    Yes, but at last it would indicate a homicide had occurred. All we ever really ask is that the law reflect the crime. We all know the law itself is corrupt but to be so corrupt it can’t successfully prosecute a person who killed another when he wasn’t legally here, handling a gun it was illegal for him to possess is the pinnacle of a broken legal system. But since the left has broken everything else it’s touched from public assistance to immigration to health care why would we expect the law to remain honorable and respect it?

    Rev.Hoagie (6bbda7)

  20. See? Hoagie gets the symbolism.

    Haiku, mg, NutRob and Frederick can relax.

    Admiral Ben burn (b3d5ab)

  21. Very helpful, but would Homer from Fresno have been judged the same?

    crazy (d99a88)

  22. Ramming it down our throats with a flaccid Pence tie-breaker..

    http://talkingpointsmemo.com/dc/gop-leaders-claim-theyve-sewn-up-50-votes-for-tax-bill

    Admiral Ben burn (b3d5ab)

  23. Laurie Levenson, the LA Times’ go to liberal law professor, commended the jury for ignoring the political rhetoric.

    But did they? Like John McCain’s vote on health care, they may have wanted to send a message and stick it to the man. Don’t forget, San Francisco gave us the Twinkie defense to murder.

    I would have like to hear the testimony about trigger pull on the gun and how many times he shot the gun. Zarate told the media the gun went off three times, which was probably not believed by the jury. But his statement that he was high on pot and pills seems to have veracity based on his basic demeanor.

    AZ Bob (f60c80)

  24. It was fairly obvious all the time that it wasn’t murder. (The bullet that killed her couldn’t possibly have been aimed at her, nor, probably, anybody else) and the gun charge is a kind of open and shut easy case, but where did criminally negligent homicide and perhaps involuntary manslaughter go?

    Maybe the likely sentence for criminally negligent homicide isn’t any greater than for illegally possessing the gun (which indicates something wrong with the law here) and maybe for involuntary manslaughter, but still.

    I see that Patterico says this might not even have been criminally negligent homicide. That is, he didn’t “test fire” the gun in heavily trafficked area – and even that mightnot qualify if he thought he was firing it in a safe direction, which maybe he wasn’t; the gun might have just gone off. I guess you’d have to know more about guns, and what could happen with this gun, to know if this was
    so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.

    I always thought this was a “test-firing” of a stolen gun he had purchased from somebody else. Stupid, but that it would harm someone was the furthest thing from his mind. He wasn’t interested in calling attention to himself. It took place in a tourist area because he was unfamiliar with the city and didn’t really live there. But now I read that it maybe wasn’t a test-firing at all. Why wasn’t it concealed then? (if it was concealed, wouldn’t he have hurt himself?)

    Sammy Finkelman (e70ce9)

  25. I wonder if the family would have a cause of action against the City bc of its unlawful rejection of federal law, which ultimately cost their daughter her life.

    Patricia (5fc097)

  26. Patterico 16. Even had he been convicted of involuntary manslaugher, he might have time served by now.

    Are the sentences for that, no more than for possessing the weapon?

    19. Rev.Hoagie (6bbda7) — 12/1/2017 @ 8:42 am

    Yes, but at last it would indicate a homicide had occurred.

    I think from the point of view of death statistics, it still is a homicide. Or is now an accident?? What happens in case of doubt?

    Sammy Finkelman (e70ce9)

  27. As to the question of why citizens getting guilty verdicts on various manslaughter charges with relative ease (see Homer from Fresno and 3 other cases from the previous thread), perhaps the prosecution did not want the meme “Plea Bargain” getting out there in this highly visible case.

    urbanleftbehind (5eecdb)

  28. I must add that guns do not go off by themselves. A typical trigger pull of six pounds is significant.

    AZ Bob (f60c80) — 12/1/2017 @ 8:32 am

    You keep saying that in every thread about this topic, but there is another view.

    DRJ (15874d)

  29. 25. The city or the state is not obligated to enforce federal law, and it was not reasonably foreseeable that a death would be one result, and it was federal law and policy that sent him there in the first place.

    I think the background is like this:

    There was a time when the INS would deport people serving time in jail before they had completed their sentences. This made drug dealers, and some killers, from the Dominican Republic very happy, because they were quite content to leave the United States once they had made their pile of cash.

    So they initiated a new policy. They would not disrupt state prosecutions.

    But they also had another policy. If someone deportable was facing federal charges, his case would be entirely dealt with, sentence and all, to the point where the federal government had no further criminal claim on him before any state charges were dealt with. He could then still face expulsion from the United States, but state criminal charges would be given priority over that.

    This man had been convicted (I think only of re-entering the United States, also maybe some previous crimes) and served his time.

    Before his expulsion, though, he was sent to San Francisco, to face some marijuana possession charge from 1988. His lawyers of course had regarded that as a lifeline and had not tried to prevent that.

    Once in San Francisco, the charges were quickly dismissed, and he was set free.

    Now San Francisco would hold people if they were wanted on a federal warrant, but he had served all of his time!

    Te only claim the federal government had on him was removal from the United States, and that San Francisco didn’t help with – it would have been illegal too, to hold him – writ of habeus corpus.

    (The jurisdictions that co-operate with ICE notify ICE in advance when someone is about to be released from custody, so if they want to, and they don’t always want to and have the time to, they can grab him as soon as he is let go.

    This San Francisco was not in the business of doing. Most of the people this affected had lived in San Francisco a long time. This wasn’t the case with Garcia Zacate, and this did play a role in what happened.

    So anyway, now, he didn’t make his way back to Texas, which is where he had really wanted to be. He stayed in San Francisco where the authorities were not looking for him. And he bought a stolen gun.

    Maybe he wanted to do some robberies. Or it could be for protection in case he got into an argument.

    I would think the problem is the market in stolen guns.

    Sammy Finkelman (e70ce9)

  30. He was also found not guilty of assault with a firearm.

    I don’t know why he was even charged with that. The facts didn’t bear that out.

    Sammy Finkelman (e70ce9)

  31. Superb post, one that started well with the riff on Popehat, and then got into some heavy-lifting law-‘splaining that our host made look pretty easy. Thank you.

    @ AZ Bob, who wrote (#13):

    Zarate said he was high on pot and pills when he picked up the gun. I argue res ipsa loquitor, the thing speaks for itself.

    There’s actually very little Latin used in the modern practice of law or even in law schools. This phrase, though, “res ipsa loquitur,” rolls off the tongue nicely and is part of the basic curriculum — albeit only a very, very small part — in Torts, which is traditionally taught in the first year of law school, usually by studying an 1863 English case, Byrne v Boadle, in which the plaintiff had been injured, while walking down a public street, by a falling barrel of flour that had rolled out of a merchant’s second-floor loft. The plaintiff argued, and the court agreed, that the plaintiff should be excused from having to prove precisely how the barrel had been allowed to roll out of the loft:

    [I]t apparent that the barrel was in the custody of the defendant who occupied the premises, and who is responsible for the acts of his servants who had the control of it; and in my opinion the fact of its falling is prima facie evidence of negligence, and the plaintiff who was injured by it is not bound to show that it could not fall without negligence, but if there are any facts inconsistent with negligence it is for the defendant to prove them.

    But res ipsa loquitur is a civil-law concept relating to specifically and exclusively to the civil tort of negligence. It has nothing to do whatsoever with the criminal prosecution of Zarate or this verdict and was assuredly nowhere in the trial court’s charge and instructions to the jury.

    Even in civil personal injury practice, which I’ve done for 37 years now, it gets mentioned far, far more than it’s ever actually used. “This is almost a ‘res ipsa’ case,” you might hear some PI lawyer say to a buddy over lunch, but probably not to a judge. In fact, if you use it in front of a trial judge, the first reaction you’ll get is extreme and intense skepticism.

    In a loose, non-legal sense, what “speaks for itself” here is the foolishness of the San Francisco and California state authorities who are engaged in this sanctuary city nonsense. This case is indeed a very pertinent data point to the public, political policy discussions regarding our immigration laws, our criminal laws, the subject of cooperation between state and federal law enforcement authorities, and the like. You and I probably agree upon that.

    But if you are asserting that people should go to prison on felony convictions even though a jury has found that the state failed to prove beyond a reasonable doubt every element of one of the crimes that actually are in the statute books, then we definitely do not agree.

    Beldar (fa637a)

  32. Thanks Patterico, this was a great post.

    Ipso Fatso (7e1c8e)

  33. I’m confused- I’ve seen claims there were 3 shots fired, not just 1.

    Steve Malynn (9c1a13)

  34. Patricia, it looks like they already attempted to do that:

    In a federal wrongful death lawsuit, Steinle’s parents had argued that San Francisco and its former sheriff were partly to blame, because officials never notified Immigration and Customs Enforcement when Lopez-Sanchez was released from a local jail in April 2015.

    “Kate’s death was both foreseeable and preventable had the law enforcement agencies, officials and/or officers involved simply followed the laws, regulations and/or procedures which they swore to uphold,” the lawsuit said.

    In a ruling issued Friday, Magistrate Judge Joseph C. Spero dismissed the family’s claims against San Francisco and former Sheriff Ross Mirkarimi.
    “No law required the Sheriff’s Department to share Lopez-Sanchez’s release date with ICE, nor did any law forbid Mirkarimi establishing a policy against such cooperation,” Spero wrote.
    The magistrate also dismissed the family’s claim against ICE.

    But he ruled that the family’s lawsuit accusing the Bureau of Land Management of negligence can proceed.

    Authorities said the gun the shooter used had been stolen from a Bureau of Land Management agent’s unattended vehicle

    Dana (023079)

  35. 34. Dana (023079) — 12/1/2017 @ 9:45 am

    Authorities said the gun the shooter used had been stolen from a Bureau of Land Management agent’s unattended vehicle

    Not by Garcia Zacate!

    Sammy Finkelman (e70ce9)

  36. I’m troubled that the Judge allowed “expert” testimony that sig sauer models are prone to misfiring – there was an issue with an entirely different model. The pistol in question shoots when the trigger is pulled, that’s it.

    Steve Malynn (9c1a13)

  37. Sammy, how do you know? Was the thief caught?

    Steve Malynn (9c1a13)

  38. If a compounding pharmacist fills prescriptions while drunk, and his mistakes cause an allergic reaction and death, this would be maybe involuntary manslaughter?

    If so, are a city’s officials who habitually release multiply-deported individuals back into the community criminally negligent?

    Kevin M (752a26)

  39. If so, are a city’s officials who habitually release multiply-deported individuals back into the community criminally negligent?

    Being in the country illegally does not “create a high risk of death or great bodily injury” to anyone.

    If it did, there would be millions of Kate Steinle cases instead of one.

    Dave (445e97)

  40. Mostly out of morbid curiosity, considering the relevance to the case of the claim of “accidental discharge” and the definition here of criminal negligence, here is a question for Mr. P and the other qualified legal experts:

    If a person “acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences,” why is the occurrence of a firearm’s accidental discharge while in someone’s possession — an event in itself plausibly likely to cause significant injury or death if it occurs in the presence of unaware bystanders — not by definition an act of criminal negligence? Isn’t an “ordinarily careful person,” finding himself in possession of a firearm, by definition expected not to act in a way that could plausibly lead to its accidental discharge?

    Stephen J. (f77922)

  41. Thank you Beldar for pointing out that the doctrine of res ipsa does not apply. But would anyone want to stand around a stoned person who is handling a loaded, semiautomatic handgun?

    It is not the first jury result that puzzled me. I do suspect that liberal leaning jurors probably saw themselves as heroes standing up to Trump and others opposed to sanctuary city policies.

    In the big picture, does this verdict hurt or help the move for building the wall? I see Trump using it big time.

    AZ Bob (f60c80)

  42. @ AZ Bob, who wrote (#41):

    But would anyone want to stand around a stoned person who is handling a loaded, semiautomatic handgun?

    Nope, I certainly wouldn’t. And I don’t like or believe Zarate, I’m not saying he’s an innocent person — indeed, he is a bad man who now has another new felony conviction, or will as soon as judgment is entered on yesterday’s verdict. But I didn’t see and hear the evidence in this trial, so I don’t know if I would have voted the way this jury did, and I really don’t have any basis at all to start second-guessing the decisions made by the lawyers on either side, or by the court.

    It is not the first jury result that puzzled me. I do suspect that liberal leaning jurors probably saw themselves as heroes standing up to Trump and others opposed to sanctuary city policies.

    That’s entirely possible and wouldn’t surprise me, either. Another theory, not inconsistent with that one, is that the unanimous verdict reflected both some jurors’ politically-based, left-leaning predilections (the nullification theory) as ultimately allied in the jury room, through the magical process of jurors arguing and discussing with each other, to other jurors who might be punctilious about observing burdens (the prosecution’s) and standards (beyond a reasonable doubt) of proof on very specific elements of crimes as charged under the relevant state law. Remember, even one pro-prosecution juror could have hung the entire jury on the counts on which he was acquitted.

    So very much depends on the specific evidence of each individual case, in all its granular, gritty detail, but with the razor-sharp limit being that which the opposing advocates presented through the witness’ testimony and the physical evidence, and which the trial judge permitted. You can’t say a particular jury’s result was wrong based on stuff that wasn’t part of the particular trial in which they participated.

    Regarding accidental discharge, for example: I’m a gun-owning citizen, raised as a hunter in a gun-owning, hunting household, and I’ve never once experienced an accidental discharge myself, and I credit in full the reports of those with vastly more firearms-handling experience than mine, here on this blog’s comments or in discussions of this case elsewhere, who say they’ve never had an accidental discharge either. And for pedagogical reasons having to do with keeping gun-handling procedures sharp and safe and consistent, I’m not inclined to argue with someone who asserts, for example, that “guns don’t go off by themselves.”

    But if I had been on this jury, I would have been instructed by the judge to put aside all of my own prior experience, and the hearsay (even if reliable hearsay) knowledge I think I have from others, on this subject — and to instead base my decision about proof beyond a reasonable doubt solely on the evidence admitted during this trial. I wouldn’t have been free (without violating my juror’s oath) to say to other jurors back in the jury room, “You know, I saw an episode of ‘Mythbusters’ on YouTube which convinced me that [assertions X, Y & Z] are inevitably true about guns.” That would be convicting someone on secret (extra-judicial) hearsay opinion evidenced! Instead, I and the other jurors would be considering the expert opinion evidence actually admitted into evidence, including the cross-examination of those experts, and the physical evidence in this particular case.

    In the big picture, does this verdict hurt or help the move for building the wall? I see Trump using it big time.

    Oh, it’s a political windfall, actually, for Trump in particular, and more generally, for everyone who opposes sanctuary cities and loose borders. Regardless of his acquittal on the serious charges, this guy — and this homicide — is still the ‘poster-child case’ of awful consequences from a broken system, and the acquittal actually just highlights how badly broken the system is. But that still doesn’t mean this particular jury, or this judge, or this set of lawyers and witnesses, screwed up. Maybe they did, but I’m not yet convinced of that.

    Beldar (fa637a)

  43. Thank you for the legal explanation, Patterico.

    aphrael (e0cdc9)

  44. Rev. Hoagie: you *can* prosecute the guy for any number of crimes. But you can’t successfully prosecute him for a crime he didn’t commit. Like, there’s no evidence he committed arson, right, so it’s not possible to convict him for that crime. Similarly, under California law that has stood largely untouched *for generations*, he can’t be prosecuted for felony murder, because felony murder *only* applies in the case of *specific named predicate crimes*.

    That’s a policy decision which was made before I was alive.

    If the voters of California are unhappy with that policy decision, we can amend it by voter initiative, to either do away with the predicate crimes or to add a specific new predicate crime (illegal immigrant in possession of a firearm). But that hasn’t been done.

    aphrael (e0cdc9)

  45. “I would have been instructed by the judge to put aside all of my own prior experience, and the hearsay (even if reliable hearsay) knowledge I think I have from others, on this subject — and to instead base my decision about proof beyond a reasonable doubt solely on the evidence admitted during this trial.

    Though I can see the principle this is supposed to uphold I have to admit I’m a little surprised by that. Taken at face value, this seems to suggest that if a juror is privy to exculpatory evidence which for whatever reason did not make it into the courtroom, or to knowledge which undermines other evidence, he’s not permitted to share knowledge of that evidence or vote in accordance with it.

    I freely admit this is a fictional example and so may be wrong, but I’m nonetheless reminded of the scene in Twelve Angry Men where one of the jurors notes something that neither prosecution nor defense attorneys did: that a witness had the telltale marks of spectacles on her nose, spectacles which she wasn’t wearing in court and, given the time and circumstances of her claimed testimony, might quite likely not have been wearing when she actually witnessed the crime, thus casting her testimony into doubt. By the principle here advocated, that seems to qualify as failing to put aside prior experience or knowledgeable hearsay from others and going beyond the evidence admitted at trial.

    Stephen J. (f77922)

  46. I tend to take an extremely strong view of “intentionally committing an act, the natural and probable consequence of which is dangerous to human life, with knowledge that the act is dangerous to human life, and with conscious disregard for human life.” For example, I believe that vehicular manslaughter resulting from drunk driving should not be a thing; driving drunk is intentionally committing an act, the natural and probable consequence of which is dangerous to human life, and I’m aware that my really strong view of this is inconsistent with how courts have traditionally behaved in California.

    I haven’t followed the details of this; the event happened while I lived in NY, so it was really off of my radar. It’s possible that I’d think that this was a legitimate case of second degree murder based on my really strong view of the space encompassed by second degree murder, AND I don’t know.

    aphrael (e0cdc9)

  47. Davey boy,

    Our prisons are filled to the brim with criminal aliens. They murder with guns, vehicles, fists and anyrhing else they get their hands on. They rape, rob, burn and pillage.

    Spend a little bit of time going through the FBI statistics.

    Bit that wouldn’t suit your leftist virtue signalling.

    I really hope those of you who defend these criminal aliens meet them first hand, up close.

    After all, a conservative is a liberal who has been mugged.

    NJRob (d9cfb8)

  48. Stephen J – there’s an inherent tension there, between three things.

    One: yeah, of course we want all of the relevant evidence to come to bear, and if the juror is in possession of evidence which the attorney’s don’t present, there’s a risk in either direction of a result created through failure of the attorneys to present evidence, and that’s unfair to whatever party loses.

    Two: and yet, it’s possible that evidence wasn’t introduced for a reason. Maybe the juror is in the possession of hearsay evidence because he heard from someone who heard from someone who heard from someone; rumor isn’t evidence. Or maybe the juror is in the possession of evidence which is inadmissable because it was obtained in violation of the fourth amendment, etc.

    Three: but for me, the real problem is: if a *juror* is introducing evidence, then there’s a real risk that everyone else will just follow the juror, and that the jury of twelve will *turn into* a jury of one. This is why subject matter experts are often excluded from juries.

    aphrael (e0cdc9)

  49. If so, are a city’s officials who habitually release multiply-deported individuals back into the community criminally negligent?

    Kevin M (752a26) — 12/1/2017 @ 10:11 am

    They might have civil liability and maybe even criminal liability, but they are government officials acting under color of law so they have immunity.

    DRJ (15874d)

  50. the acquittal actually just highlights how badly broken the system is

    The irony of the “build the wall” response is that Zarate had not crossed the border without getting caught since the 1990’s. He had already served 4 years in prison for his most recent illegal entry.

    The Feds’ decision to send him to SF to face a 20-year old warrant that SF had no intention of pursuing, instead of just deporting him when he got out of prison, as they had done multiple times before, is also strange. The Feds should have been aware that SF would not comply with the voluntary request to return him to Federal custody if he was not facing further criminal charges.

    Dave (445e97)

  51. Even if they weren’t acting under color of law, I think it also depends on the degree to which it is reasonably predictable that those multiply-deported individuals will commit other crimes.

    Which is to say: is it necessarily sufficiently predictable that a multiply-deported individual will commit a crime of violence that it’s reasonable to impute responsibility for that violence to the person releasing them?

    I think that’s a *really* hard case to make, morally. The overwhelming majority of illegal immigrants aren’t running around committing crimes of violence, so unless there’s some indication that *this specific individual* will do so, how is his immigration status enough to create a risk that the official should be held morally liable for not being cognizant of?

    aphrael (e0cdc9)

  52. Stephen J:

    Though I can see the principle this is supposed to uphold I have to admit I’m a little surprised by that. Taken at face value, this seems to suggest that if a juror is privy to exculpatory evidence which for whatever reason did not make it into the courtroom, or to knowledge which undermines other evidence, he’s not permitted to share knowledge of that evidence or vote in accordance with it.

    Potential jurors are asked if they know the defendant, victim and their families in a case, and they are good they should not be on a jury if they have information about the case. If it becomes apparent a juror knows something and thus is a potential witnesd, but (for instance) did not realize it was this case until already serving as a juror, that would be grounds for a mistrial.

    Your 12 Angry Men example is different. The jurors observed the indentation on the singer’s nose in court. That is evidence from in the courtroom.

    DRJ (15874d)

  53. Sorry for the typos.

    Potential jurors are asked if they know the defendant, victim or their families in a case, and they are told they should not be on a jury if they have information about the case. If it becomes apparent a juror knows something and thus is a potential witness, but (for instance) did not realize it was this case until already serving as a juror, then that would be grounds for a mistrial.

    DRJ (15874d)

  54. AZ Bob and Beldar (at 13 and 31):

    this is a hypothetical musing. I *do not know the facts of the case* and can’t be bothered to find them out because really they’re less interesting to me than the principle.

    On the one hand, I have a strong inclination to say that picking up a gun while stoned *or drunk* is per se “intentionally committing an act, the natural and probable consequence of which is dangerous to human life”.

    And yet at the same time, I’m *also* aware that state-dependent memory and skills acquisition are a thing. I can imagine individuals who are regular pot users who are also gun lovers who would be *perfectly safe* picking up a gun while buzzed. I’d never do it myself, but I wouldn’t necessarily feel unsafe around people who’d had lots of experience doing this.

    But it’s next to impossible for a prosecutor, or a jury, to differentiate between people who would be safe and people who wouldn’t.

    So a hard and fast rule is totally the right way to go *legally*.

    Morally, though? It’s harder for me to say.

    aphrael (e0cdc9)

  55. > If a person “acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences,” why is the occurrence of a firearm’s accidental discharge while in someone’s possession — an event in itself plausibly likely to cause significant injury or death if it occurs in the presence of unaware bystanders — not by definition an act of criminal negligence? Isn’t an “ordinarily careful person,” finding himself in possession of a firearm, by definition expected not to act in a way that could plausibly lead to its accidental discharge?

    My first reaction is to say that the burden would lie with the prosecution to prove that the discharge happened as a result of the person’s actions and not as a result of mechanical failure. That seems reasonably difficult to do.

    aphrael (e0cdc9)

  56. The gun was wrapped in a cloth under a bench and there is no indication the defendant knew what it was, so we don’t even get to that issue, aphrael.

    DRJ (15874d)

  57. and maybe even criminal liability

    Nobody is required by law to comply with a “detainer” request like the one SF refused for Zarate.

    They are not warrants, and do not have the force of law because they are administrative requests issued by a bureaucrat somewhere, with none of the legal safeguards associated with a warrant. Compliance can even expose the law-enforcement agency to legal liability themselves. If legal challenges (e.g. habeus corpus) or wrongful detention suits arise, the municipality, not the Feds, is on the hook for the associated costs.

    That, to me, is the most serious flaw in the system exposed here. There should be some form of short-term warrant for deportation, signed by a judge, and carrying the force of law.

    Dave (445e97)

  58. Stephen J,

    Common sense and evidence are different and your 12 Angry Men cite is a good example. They observed the indentation on her nose in court. That is evidence. Their common sense tells them that indentation came from something, probably glasses. Common sense is allowed to understand the evidence but not to ignore it.

    DRJ (15874d)

  59. DRJ — wait, WHAT?

    if there’s no indication that the defendant even knew that it was a gun, why are we even talking about murder?

    aphrael (e0cdc9)

  60. Apparently they have a warrant now for Garcia.

    I assume it is administratively difficult to get warrants all the time. Our West Texas federal courts are working impossible hours just trying to keep up with indicting and trying all the drug and illegal immigrant cases, let alone hearings for countless warrants.

    DRJ (15874d)

  61. > Our West Texas federal courts are working impossible hours

    Unrelated, but: it would be nice if both the state and federal governments could allocate more money to court operations.

    aphrael (e0cdc9)

  62. The defense said he didn’t know and it accidentally discharged, but in the police interview Garcia told several stories including that he was aiming at sea lions. The police never pinned him down and the verdict suggests the jury believed the defense.

    DRJ (15874d)

  63. It would be nice to have a wall and not need more money for those particular courts.

    DRJ (15874d)

  64. Actually, it could be that the jurors didn’t believe the defense but they thought the prosecution failed to meet its burden of proof. I could easily see that since the evidence was inconclusive in many ways.

    DRJ (15874d)

  65. Ahh, ok then. We’re talking about it because whether he knew what it was or not was one of the facts in dispute. *If* he didn’t know, then of course it’s not murder, but that’s in dispute.

    I have to say, as someone who is in the physical location where the shooting occurred somewhat often, that I find it massively implausible that there was just a gun wrapped in a tshirt left under a bench. That strikes me as unbelievable.

    A more interesting theory is that the gun was his, and he’d put it there before getting stoned, and once he was stoned he didn’t remember that it was there or what it was. *That* is totally beleivable to me, depending on what he was taking, and since his story (says wikipedia) is he was taking random pills pulled from a trash can, it seems totally believable.

    But in that case: you’ve got a gun with you and you take random pills from a trash can? That gets me to second degree murder, right there, EVEN IF the gun later accidentally discharges.

    aphrael (e0cdc9)

  66. 34. 35. 37. 35.34. Dana (023079) — 12/1/2017 @ 9:45 am

    Authorities said the gun the shooter used had been stolen from a Bureau of Land Management agent’s unattended vehicle

    SF>

    Not by Garcia Zacate!

    Steve Malynn (9c1a13) — 12/1/2017 @ 9:51 am

    Sammy, how do you know? Was the thief caught?

    Because they don’t get more specific. When was it stolen, and where from? All the accounts used to be vague, and I thought they were hiding something. They used to blame Garcia Zacate for stealing it without saying why. I thought it maybe wasn’t even stolen in San Francisco. I thought he might have no idea where to find a gun but a local criminal would. But maybe better is that Garcia Zacate is the one who wanted to sell the stolen gun. If the guin was stored in a backpack, and you’d onl;y discover it after you opened the backpack, where wa sthe backpack and the law enforcement credentials? Were tghey stolen too? What?

    https://ww2.kqed.org/news/2017/10/26/blm-ranger-tells-jury-how-his-gun-was-stolen-before-steinle-killing/

    a parking space several blocks from the site of Steinle’s shooting…on the west side of the Embarcadero across the street from Pier 5…When the group returned just before 11 p.m., Woychowski’s fiancee was the first to notice the break-in, he testified..The public defender’s chief attorney, Matt Gonzalez, represents Garcia Zarate, a Mexican citizen. Gonzalez is arguing that Garcia Zarate unintentionally fired Woychowski’s gun within seconds of finding it wrapped in cloth on Pier 14.

    Now that last is clear nonsense. He might have claimed that in order to try to avoid conviction for possessing it.

    Matt Gonzalez tried to cross examine John Woychowski on why the gun was stolen and why the gun was loaded, but that’s irrelevant. The The Bureau of Land Management tried to prevent his testimony. There was a question why he didn’t carrty the gun with him and left it in his car loaded.

    I still think this is a test-firing. Garcia Zacate might have thought Pier 14 was a less crowded place than Pier 5. Kate Steinle was 78 feet away.

    http://www.foxnews.com/us/2017/10/26/kate-steinle-trial-to-feature-more-testimony-on-shooting-video-that-made-courtroom-gasp.html`

    Sammy Finkelman (02a146)

  67. I agree, but they had video of a group of people at the bench before Garcia sat there and one of them could have left it. The gun had been stolen 4 days earlier from a park officer’s (I think) car, and there were no prints because Garcia threw it into the ocean.

    DRJ (15874d)

  68. DRJ, at 67:

    That’s a hard call. It falls in the space between “more likely than not” and “beyond a reasonable doubt”. It’s really hard for me to judge with integrity what I would have thought without hearing all of the evidence.

    aphrael (e0cdc9)

  69. I would say poor Ms. Steinle is in the running for the dubious honor of being one of the unluckiest people who ever lived.

    1) Fed agent leaves weapon in vehicle where it can be stolen
    2) SF leaves open 20-year old warrant on Zarate that they have no intention of prosecuting
    3) Feds inexplicably send Zarate to SF to face the warrant instead of just deporting him as they had multiple times in the past
    4) SF refuses to hand him back to Feds for deportation after dropping the pot charges
    5) Freak richochet from a shot fired 90 feet away (which struck the pavement 78 feet away) hits her
    6) She dies from a single gunshot wound after hours of surgery fails to save her

    If you believe that Zarate had simply found the gun (doubtful) or that he did not intend to fire it (more likely IMO), that adds even more contingencies.

    Dave (445e97)

  70. DRJ (15874d) — 12/1/2017 @ 12:18 pm

    The gun had been stolen 4 days earlier from a park officer’s (I think) car,

    John Woychowski testified it was stolen on July 1 and he immmediately called 911. (I don’t know if that’s true, but presumabably if he’d been lying, he could have been cross-examined on that, or maybe it didn’t serve the purpose of the defense attorney)

    Wikipedia says: https://en.wikipedia.org/wiki/Shooting_of_Kathryn_Steinle the shooting occured on
    July 1, 2015 6:30 p.m.

    Which would seem to be bfore the gun was reported stolen!

    https://ww2.kqed.org/news/2017/10/26/blm-ranger-tells-jury-how-his-gun-was-stolen-before-steinle-
    killing/

    Ranger John Woychowski started his trip on June 27, 2015.

    He said he decided to stop in San Francisco for dinner around 9:30 p.m. and parked on the west side of the Embarcadero across the street from Pier 5. “It was well-lit, metered parking with other pedestrians in the area,” Woychowski testified. “I thought it would be pretty safe.”

    He said he placed his Eddie Bauer backpack containing the gun and his law enforcement credentials behind the driver’s seat of his SUV, which automatically reclines when the vehicle is parked. Then he locked the SUV and headed to dinner.

    When the group returned just before 11 p.m., Woychowski’s fiancee was the first to notice the break-in, he testified.

    So letme get thsi straight:

    The gun was stolen from a parked car sometimes between 9:30 pm and 10:55 pm, but Kate Steinle was shot at 6:30. Sounds like someone had a time machine. Or somebody’s facts are wrong.

    http://abc7news.com/news/family-devastated-after-woman-shot-killed-in-sf/824358/

    Kate was fatally shot at around 6:30 p.m. as she strolled the pedestrian pier to take photos with her father

    yep.

    Before the gun was stolen.

    Unless it wasn’t stolen that late and none of what John Woychowski testified too is true.

    What about amistake in the tiem of the shoting? If people around her were taking pictures, it would probably still have been daylight, but by 9:30 it would be night.

    Did John Woychowski report the gun stolen only after he heard about the jkilling? If so, hwo did he know the gun was his? Did he sell it to Garcia Zacate?

    Sammy Finkelman (02a146)

  71. How likely is it that a street criminal steals a valuable hand gun and then walks away leaving it under a bench in a public place?

    DN (4c7af4)

  72. Dave: the thing is, if I think about this as a *juror*, it’s not the defense’s job to prove that the defendant didn’t do it, it’s the prosecution’s job to prove that he did.

    Which is to say: I don’t have to believe the coincidences *happened*, I just have to believe that it’s not proven that they *didn’t* happen.

    aphrael (e0cdc9)

  73. There may be soem more reasonable interpretation of the contradictions.

    The New York Daily News also said this was about 6:30 pm.

    http://www.nydailynews.com/news/crime/woman-killed-front-father-random-targeted-shooting-article-1.2280284

    Kate Steinle, 32, was walking with her dad on Pier 14 on the Embarcadero when she was shot in the chest and fell to the ground at about 6:30 p.m., police said. She later died at a hospital.

    Now maybe the time has been corrected, but there';s a serious problem here.

    Sammy Finkelman (02a146)

  74. Almost every serious accident involved a series of coincidences.

    Sammy Finkelman (02a146)

  75. DN, at 71: yeah, that’s part of why I think it’s more likely than not that the gun was Garcia’s.

    BUT: imagine that a street criminal steals a valuable hand gun, then gets intoxicated enough to forget that he’s put it down under the bench where he’s sitting. That’s sufficiently *possible* that it muddies the waters, especially if one of the alternative theories is that Garcia was so intoxicated that he forgot he had a gun — if *Garcia* could forget, then surely *someone else* could, too.

    Is it more likely than not that someone forgot a gun? No. Is it sufficiently possible to constitute reasonable doubt? Maybe.

    aphrael (e0cdc9)

  76. I agree with DRJ about the 12 Angry Men point. Jurors are entitled to draw conclusions about a witness’ credibility in very large part based on their observations of those witnesses in the courtroom, under the general stress of being on the witness stand and under oath, and under the further stresses of being cross-examined. In the play & movie, the witness’ eyesight was an issue relating to the credibility of her testimony as an eyewitness. Likewise if she’d walked in wearing dark glasses, holding a cane, and being led by a guide-dog. The marks on her nose were part of their overall observation of the witness and their resulting evaluation of her credibility and the weight to give her testimony — rather than being a specific bit of evidence bearing directly on the defendant’s innocence or guilt. But yes, it could still be very important, and perhaps even outcome determinative.

    Beldar (fa637a)

  77. 71. DN (4c7af4) — 12/1/2017 @ 12:44 pm

    How likely is it that a street criminal steals a valuable hand gun and then walks away leaving it under a bench in a public place?

    And how does someone get killed by a gun three hours before it gets stolen?

    Sammy Finkelman (02a146)

  78. One hour ago, I didn’t expect to find this problem.

    Sammy Finkelman (02a146)

  79. @ DN: If I’m a handgun thief sitting on a bench in possession of a firearm I’ve just stolen and wrapped in a piece of cloth, and I see a strolling police patrolman coming my way, I very well might leave that damning evidence under the bench while trying to distance myself from the scene as quickly but discreetly as possible.

    Beldar (fa637a)

  80. Beldar, at 79: that’s an even more convincing explanation than my speculation, and is *clearly* enough to get me to reasonable doubt.

    aphrael (e0cdc9)

  81. Maybe the date of the theft is wrong. That could explain the discrepancy. It should be verifiable when the theft as reported to the ppolice. If it was 11 pm, was it maybe June 30? June 29? 28? Do we have the right gun? I mean yes the gun that fired, but the same gun reported stolen? Which fact is wrong?

    Sammy Finkelman (e70ce9)

  82. Apparently there was a second car broken into in the same vicinity, around the same time as the BLM agent’s. The thief even left ammunition for the Sig Sauer and some other items in the other vehicle.

    Other valuable items were taken, including multiple credit cards, computers and passports, and apparently Zarate’s fingerprints were not found in either of the burglarized vehicles, nor is there evidence he used or tried to sell any of the other stolen items.

    So maybe there is more than just a patina of credibility to the claim that he found the gun.

    A more likely possibility would be that he obtained the gun from the thief in exchange for something else like drugs. I haven’t read any explanation of how Zarate supported himself during the period leading up to the shooting, but based on what we know, one would assume that it must have involved crime.

    Dave (445e97)

  83. Sammy everything I’ve read said the gun was stolen four days before the shooting.

    Dave (445e97)

  84. Iwanted to write more about Leigh Corfman (her story makes Roy Moore sound like an experienced seducer or what someone thinks an experienced seducer should be) the tax bill, lying about the economy and other things, and about North Korea. But I got drawn in to today’s posts.

    Sammy Finkelman (e70ce9)

  85. No he started his trip 4 days before the shooting. He was 600 miles away.

    Sammy Finkelman (e70ce9)

  86. hey illegal alien

    whatcha doin with that gun

    shoot it bang bang it’s ok

    ain’t no murder if you ricochet

    happyfeet (28a91b)

  87. This article, citing a court motion filed by the public defender, says four days.

    According to the narrative presented in the filing, an agent from the Bureau of Land Management left the loaded pistol unsecured in his car parked along the Embarcadero. Sometime in the evening of June 27, 2015, the gun, along with a a duffle bag, a backpack, three BLM uniforms, and the agents credentials and credit cards, were stolen. The agent reported the burglary at 11:14pm.

    Dave (445e97)

  88. “My first reaction is to say that the burden would lie with the prosecution to prove that the discharge happened as a result of the person’s actions and not as a result of mechanical failure. That seems reasonably difficult to do.”

    I have to admit I find it hard to imagine a mechanical failure capable of causing an accidental discharge without at least some corresponding action on the possessor’s part. Even assuming a botched repair which gives a particular firearm an effective hair trigger, for example, the user would still have to have loaded the weapon, chambered a round, disengaged the safety, and then either carried it in a dangerous manner (i.e. held with the finger on the trigger and the muzzle not aimed upward) or carelessly dropped it through negligent handling — all basic rules of gun safety. I wouldn’t even pick up a gun once I realized what it was unless I had checked all of those factors first.

    Which I suppose makes for a simpler way to ask the original question: Why isn’t failure to follow the rules of firearm safety considered, by definition, an act of criminal negligence?

    Stephen J. (f77922)


  89. Why isn’t failure to follow the rules of firearm safety considered, by definition, an act of criminal negligence?

    It is if you’re in a non-protected category.

    Rev.Hoagie (6bbda7)

  90. I’m confused- I’ve seen claims there were 3 shots fired, not just 1.

    That has been said, but I think it’s wrong.

    http://abc7news.com/politics/bullet-that-killed-steinle-at-pier-14-appears-to-have-ricocheted/958526/

    SAN FRANCISCO (KGO) —
    The single bullet that struck and killed Kate Steinle, 32, in broad daylight on San Francisco’s Pier 14 in July appears to have ricocheted off of the pier walkway prior to hitting her, according to expert testimony provided Wednesday during the second day of the murder suspect’s preliminary hearing.

    Officials say the gun Francisco Lopez Sanchez is accused of firing was not actually pointed at Steinle, but at the ground.

    San Francisco police criminalist and ballistics expert Gerald Andrew Smith displayed the gun that was used in the shooting. It was a black Sig Sauer P239 .40 caliber semi-automatic pistol that had been recovered by divers from the San Francisco Bay near Pier 14 the day after the homicide.

    Smith said one round had been fired from the seven cartridge magazine clip and that the gun was still functioning normally.

    Patterico (885b2a)

  91. Why isn’t failure to follow the rules of firearm safety considered, by definition, an act of criminal negligence?

    Maybe because the standard is a “reasonable” person, not a “firearms safety-trained” person?

    As Patterico clearly explained in the original post (which you must not have read):

    Merely picking up a gun and having it accidentally go off is unlikely to be found to be criminally negligent. Waving it around or brandishing it is closer to the type of behavior that this crime targets.

    Dave (445e97)

  92. The defense said he didn’t know and it accidentally discharged, but in the police interview Garcia told several stories including that he was aiming at sea lions. The police never pinned him down and the verdict suggests the jury believed the defense.

    Are we sure he said “aiming”? I think some things were lost in translation. Also I saw a TV interview of Zarate in English where he seemed to agree with almost everything the interviewer said and claimed the gun was shot several times. But it was actually fired only once.

    Patterico (885b2a)

  93. Dave, at 92: that’s a really important distinction, and thank you for making it.

    aphrael (e0cdc9)

  94. first off i’d like to thank all our brave first responders they’ve done an extraordinary job under extremely difficult circumstances

    now i’m happy to take any questions you might have

    happyfeet (28a91b)

  95. The quote I read was that Zarate said it went off “Bang bang bang”.

    He may have simply said “bang bang bang” for emphasis, not understanding that it would suggest the gun was actually fired three times. Remember this guy only has a second-grade education.

    Another possibility is that he interpreted the ricochet and/or echoes/reverb of the firing off nearby buildings as additional shots.

    The times I’ve fired guns, I have always been surprised at how loud they are. It can leave your ears ringing for some time after.

    Dave (445e97)

  96. 89, 92

    You might be surprised at the number of allegedly trained gunowners who fail even the reasonable person standard…

    Examples can be found here
    http://booksbikesboomsticks.blogspot.com/search/label/Safety%20first%20-%20Accidents%20last

    BTW, to anyone not already familiar with it, I highly recommend that blog in general.

    kishnevi (9a5a41)

  97. “Maybe because the standard is a “reasonable” person, not a “firearms safety-trained” person?”

    The implication being that it’s unreasonable to expect someone who wants to handle a firearm to be trained in firearm safety, and to hold them legally responsible for doing so when they know they aren’t?

    We wouldn’t say of a man with no driver’s license or driving experience that the standard for criminal negligence, when he caused a car accident by getting behind the wheel of a vehicle he didn’t know how to operate, was that of a “reasonable” person, not a “vehicle safety trained” person.

    I did, in fact, read the original post, but all that says is what the legal standard for negligence regarding a firearm is, not why it is what it is. My question is simply that given the danger and risk inherent in a firearm by definition of its purpose, why isn’t the standard stricter?

    Stephen J. (f77922)

  98. They might have civil liability and maybe even criminal liability, but they are government officials acting under color of law so they have immunity.

    How about federal civil rights charges. claiming they violated every citizen’s civil rights by negligently releasing known criminals into the community? I know it’s a stretch, but iirc those civil rights laws have a lot of stretch to them.

    Kevin M (752a26)

  99. Yeah, I know. I just have a severe distaste for city officials grandstanding with other people’s lives. The world would be a better place if officials COULD be held liable for acts of supreme idiocy.

    Kevin M (752a26)

  100. Can they retry him for attempted murder of a sea lion?

    mg (60b0f7)

  101. I just want to be treated like an illegal alien.

    mg (60b0f7)

  102. Flynn – guilty
    Crimalien – not guilty

    mg (60b0f7)

  103. My question is simply that given the danger and risk inherent in a firearm by definition of its purpose, why isn’t the standard stricter?

    Here’s my speculation. The perception (which I agree is inaccurate) is that negligent discharges are actually “accidental discharges”. Therefore there’s not a push to explicitly define such shootings as criminally negligent. Also, the victims of such shootings are often family, and I feel that there’s reluctance to “pile on” someone who is in the midst of a tragedy.

    Davethulhu (fab944)

  104. someone who wants to handle a firearm

    What evidence is there that Zarate wanted to handle a firearm?

    How about federal civil rights charges. claiming they violated every citizen’s civil rights by negligently releasing known criminals into the community?

    He had completed the sentence for the crime he was convicted of, and there were no outstanding warrants for his arrest. The evidence for the 20-year old pot charge had been destroyed, making it impossible to try him.

    Are you suggesting that releasing someone from jail after they’ve served out the sentence imposed by a court is criminal negligence? In other words, that every “known criminal” ever jailed must remain in custody for life?

    Dave (445e97)

  105. @102

    Be the change you want to see. Throw away all your identification and live the high life.

    Davethulhu (fab944)

  106. > why isn’t the standard stricter?

    That’s a good question, and let me try a gander at an explanation from my understanding.

    One of the roles of the jury is to determine what a reasonable person would have done, based on their knowledge of life and their common sense.

    A jury *cannot* determine what a reasonable person with expert knowledge would have done, because the jurors don’t have that expert knowledge. They would have to rely on some expert to tell them, this is what a reasonable person with expert knowledge would have done.

    That means the jury risks becoming a rubber stamp for a hired expert, and that’s incredibly dangerous to the independence of the jury.

    One effect of this, though, is that abiding by firearms safety rules will get interpreted into ‘reasonable person’ in places where the jury pool has a lot of firearms owners who are familiar with the rules. Put together a jury in rural Texas, and those jurors will pretty much all think that any reasonable person will act in accordance with firearms safety rules, even those who have never been trained. But put together a jury in San Francisco, where I can gurantee that there wasn’t a single person on that jury who *knew* what firearms safety rules entails, and you’ll get a different result.

    That’s somewhat by design. It’s not fair to members of one community to hold them to the standards of reasonable in another community.

    aphrael (e0cdc9)

  107. 106
    Thinking about doing it on the Big Island.

    mg (60b0f7)

  108. Dave, at 105: I think he’s suggesting that not deporting an illegal alien once they’ve served jail time is criminally negligent. Of coure, that suggestion requires that it be reasonably forseeable that said illegal alien will commit a crime of violence, which I don’t think is the case.

    aphrael (e0cdc9)

  109. @96 Dave

    Why isn’t a smart guy like you wearing hearing protection? Did you at least wear safety glasses?

    Pinandpuller (37eab6)

  110. That untrained uneducated joker did manage to not end up on the wrong end of the gun.

    Pinandpuller (37eab6)

  111. Why isn’t a smart guy like you wearing hearing protection? Did you at least wear safety glasses?

    The last time I fired a gun was around 1985, so no.

    Dave (445e97)

  112. The last time I fired a gun was around 1985, so no.
    Dave (445e97) — 12/1/2017 @ 3:30 pm

    Is that like some kind of recovered gun virginity thing?

    Pinandpuller (37eab6)

  113. Patterico,

    I don’t know what the trial transcript would show but this is from a news report:

    Lead prosecutor Diana Garcia told jurors Garcia Zarate had time to think about his actions as he sat in a chair on San Francisco’s Pier 14 for 23 minutes that day on July 2015. He was “staring at people and laughing” looking to see who he would shoot, the prosecutor said.

    Garcia Zarate then pulled out the concealed .40-caliber Sig Sauer and “pointed it at people and pulled the trigger” before ditching the weapon and fleeing the area, she said.
    “Kate Steinle was wiped off the earth” because of the defendant, the prosecutor said, adding “the gun gave him power.”

    “It was his secret. He wanted to fire the gun,” Garcia said.

    In a police interrogation, Garcia Zarate admitted to firing the gun, but also claimed he was aiming at a seal.

    “If it was an accident, why didn’t he say so?” Garcia asked.

    The shooting could not have been accidental as the defense has argued, the prosecutor said, because it takes force to pull the trigger.

    “It did not just go off,” she said.

    DRJ (15874d)

  114. Thank you, Pat. Always trust the content on Patterico!

    As a juror, the fact this guy blatantly disregarded our laws so many times would put the burden on HIM, not the State, to prove a benign event took place and not a criminally negligent one. Also, an ordinary citizen, in my opinion, if s/he were to pick up such a weapon at all, would take extraordinary care with it to avoid accidental discharge. Less than that would constitute felonious behavior, in my opinion.

    My reading tells me the prosecution went way too far within the trial pushing 1st degree intent. I would certainly have mistrusted them as a juror. The verdict is not a shocking miscarriage of the duties of the jurors. It is, I fully believe, a cluster by the prosecution and Justice was not served.

    Ed from SFV (3400a5)

  115. And it could definitely be a translation issue. Maybe they argued that in closing. My impression was the defense claimed he was saying anything he thought the police wanted to hear. If so, it worked. I’m not sure if would work in my community.

    DRJ (15874d)

  116. As a juror, the fact this guy blatantly disregarded our laws so many times would put the burden on HIM, not the State, to prove a benign event took place and not a criminally negligent one.

    that’s why his immigration status and deportation history wasn’t admissible — because it would prejudice him in many jurors’ minds.

    DRJ (15874d)

  117. @91 Smith said one round had been fired from the seven cartridge magazine clip and that the gun was still functioning normally.

    Patterico (885b2a) — 12/1/2017 @ 1:31 pm

    Most people who carry every day keep one in the chamber so 7+1. If this Fed was carrying 7 only then who chambered the fatal round?

    And by functioning normally do they mean accidentally discharging at random?

    Pinandpuller (37eab6)

  118. > As a juror, the fact this guy blatantly disregarded our laws so many times would put the burden on HIM, not the State, to prove a benign event took place and not a criminally negligent one

    That is NOT the correct standard to apply under the law. The burden is on the prosecution. His status as an illegal immigrant does *not* shift the burden of proof.

    aphrael (e0cdc9)

  119. Ramos and Campion didn’t get 11 and 12 years (commuted) for shooting a so called unarmed drug dealer in the buttocks in the middle of the night. They didn’t report the discharge and did a little CYA. Maybe we can hire Garcia to guard La Frontera. He now knows his way around a Sig Saur.

    Pinandpuller (37eab6)

  120. “…including the fact that the weapon involved is prone to accidental discharge…”

    That was something the defense claimed, and presumably the jury bought. But it isn’t true, not in the least. Not for a Sig in normal working order. The Sig 239 is NOT prone to accidental discharge, quite the opposite in fact. Nor does the Sig 239 have a “hair trigger”, which the defense also claimed.

    You would have to be a blithering fool to accidentally fire the Sig 239, whether the hammer cocked or uncocked. The Sig pistols lack of a manual safety is no more notable than the conventional revolvers which used to be standard police issue all over North America for most of the 20th Century.

    With the hammer uncocked it takes a strong and long trigger pull to fire the Sig. During which the hammer will noticeably move rearward before dropping to fire the pistol. With the hammer cocked, anyone could see the hammer is cocked! And even when the hammer is cocked the trigger takes at least five pounds of force to pull.

    The defense blaming what is probably one of the simplest and safest handguns ever made for the killing of Steinle is astonishing sophistry. I’m amazed the denfense even tried to make that argument, let alone have it succeed.

    Brad (98bc31)

  121. Brad,

    If the defense makes a ludicrous claim, it should be easy for the prosecution to rebut. Here is what the SF firearms expert said:

    A firearms expert with the San Francisco police department said Tuesday that while this particular Sig Sauer P239 has no external safety lever, it has safety mechanisms internally to prevent an accidental firing. Andy Smith was the person who examined and tested the gun when it arrived at the crime lab, the day after Steinle was killed.

    Smith test-fired a bullet from the Sig Sauer to compare it with the one that killed Steinle. He also measured the force of the trigger-pull two ways – one in single action mode, the other in double action mode. When the gun is in single action mode it means the gun is cocked, the hammer is pulled back, ready to go.

    When a gun is in double action mode, it means that the trigger cocks the gun and then releases the hammer. It takes a lot less force to fire a gun in single action mode.

    We don’t know whether the gun was in single action or double action mode, but the single shot suggests it might have been in single action mode.

    DRJ (15874d)

  122. Thank you, DRJ. So there were experts on both sides and the evidence was about the weapon actually used, and not speculation based on what happened in other places with other guns from the same company.

    Guys, you’re Monday morning quarterbacking the Patriots-Falcons Super Bowl game. In a big city like San Francisco, the District Attorney and Public Defender murder teams will easily have, collectively, hundreds of major felony (including murder) trials under their belts. And so will the judge.

    I would say that the biggest boost for the defense was lack of motive. No personal animus, and not during the course of another crime. It made it a lot more plausible that this was an accident.

    nk (dbc370)

  123. We don’t know whether the gun was in single action or double action mode, but the single shot suggests it might have been in single action mode.
    DRJ (15874d) — 12/1/2017 @ 4:33 pm

    I find it hard to believe the gun went from the Fed’s car all the way to the dock cocked and unlocked wrapped in swaddling clothes. Even an ignorant peasant from the sticks has probably seen someone chamber a round in a pistol on TV or in movies. The decocker is a whole other matter. On my Sig it’s between the mag drop button and the slide. It’s not what you would call intuitive. Two of my other guns have decockers on the safety.

    Pinandpuller (37eab6)

  124. Wanna bet he racked the slide with his finger on the trigger?

    nk (dbc370)

  125. All this made me think of Kelly Thomas. Which led me here

    Back before Cicinelli worked for the small Southern California city of Fullerton, he attempted to “rise through the ranks” in the Los Angeles Police Department.

    But that career path was cut short only three weeks after graduating from the police academy in 1996. That’s when Cicinelli was shot in the face, and lost his left eye.

    The man who shot him, Raul Jimenez ended up being sentenced to life in prison. That’s right, even though Cicinelli didn’t die, the shooter – because he shot a cop – got life in prison for shooting Cicinelli. After Cicinelli managed to survive the attempt on his life, he went on to kill an innocent man and face no punishment.

    The LAPD explained that after the loss of his eye, they couldn’t find a place on the force for Cicinelli.

    As a result, they agreed to an annual pension of 70% of his salary, which came out to $40,000 a year, as part of a disability pension.

    The Los Angeles Times reported back in 2011, that “despite his disability, Cicinelli was hired as an officer by the Fullerton Police Department, where he worked his way up from a reserve officer to a corporal earning $88,544 a year.”

    Are you doing the math? This was all on top of the $40,000 that the LAPD was already paying him and still pays him to this very day.

    Since then, Cicinelli has been receiving around $40,000 from the City of Los Angeles.

    That’s 18 years. You would have thought the beating death of Kelly Thomas might have changed things, but it hasn’t. The city pension board in fact reconvened to examine the merits of the pension and consider stripping Cicinelli of his LAPD benefits after the 2011 beating death of Kelly Thomas.

    Ultimately, however, the board decided to allow those payments to continue.

    Meanwhile, Cicinelli has kept busy filing motions begging to be reinstated. If he were to be reinstated, that would put his salary back to a staggering $130,000 a year!

    Source

    Pinandpuller (37eab6)

  126. > I find it hard to believe the gun went from the Fed’s car all the way to the dock cocked and unlocked wrapped in swaddling clothes

    That isn’t the argument, though. There’s no evidence Garcia is the guy who stole it; his prints aren’t on the Fed’s car. So the argument is: someone else stole it and left it cocked and unlocked and wrapped in swaddling clothes where Garcia found it.

    I’m not saying I believe it — I don’t — but it’s sufficiently *possible* that I’d need evidence showing it to be false, were I to convict.

    aphrael (e0cdc9)

  127. Is that like some kind of recovered gun virginity thing?

    I sold my rifle for food when I was in graduate school.

    Dave (445e97)

  128. That’s the case with my other favorite Law Enforcement Ramos, but he has been a mess on the domestic front.

    urbanleftbehind (fc08fe)

  129. P,

    From my earlier link:

    One of the key pieces of evidence included a recorded police interview with a Spanish translator present. Garcia Zarate gave conflicting statements but eventually acknowledged firing the shot.

    “What were you aiming at?” the detective asked.

    “A sea lion,” Garcia answers in Spanish.

    But the tape reveals that he also told police that he stepped on the gun, causing it to fire. “I grabbed it and tossed it,” he said referring to the weapon being thrown into the water.
    Prosecutors argued his assertion is not credible.

    But the defense says the interview is problematic due to translation errors.

    In a printed translation of the interview, a police detective asked, “Did you pull the trigger?” Garcia Zarate answered, “Yes.”

    But according to the defense, the word “trigger” (or “gatillo” in Spanish) was never used. Instead, they say Garcia Zarate was asked, “Did you fire?” Gonzales contends it’s an important distinction since he argues Garcia Zarate didn’t intentionally pull the trigger.

    DRJ (15874d)

  130. I initially thought the police failed to pin Garcia down, but it could also be they thought they had and the translation muddied it.

    DRJ (15874d)

  131. sounds like the police really let america down

    happyfeet (28a91b)

  132. It appears Garcia has some unfinished business in West Texas.

    DRJ (15874d)

  133. I sold my rifle for food when I was in graduate school.
    Dave (445e97) — 12/1/2017 @ 5:26 pm

    That’s weird. I’ve never sold a gun, a guitar or a dog.

    Is your middle name Esau?

    “A woman can get further with a tube of lipstick than a man can with a Winchester and a side of bacon.” C.M. Russell

    Pinandpuller (37eab6)

  134. That’s the case with my other favorite Law Enforcement Ramos, but he has been a mess on the domestic front.
    urbanleftbehind (fc08fe) — 12/1/2017 @ 5:28 pm

    Trouble seems to follow him. Illegals and cops seem to be in a protected class certain places.

    Pinandpuller (37eab6)

  135. He lied repeatedly in his interrogation. Obvious. Makes his statements untrustworthy and now he got away with murdering an innocent young woman because he’s a criminal alien and she represents Trump voters.

    Still looking for the rioting that happens with all those other so called miscarriages of justice. What’s different in this case?

    NJRob (b00189)

  136. In a printed translation of the interview, a police detective asked, “Did you pull the trigger?” Garcia Zarate answered, “Yes.”

    But according to the defense, the word “trigger” (or “gatillo” in Spanish) was never used. Instead, they say Garcia Zarate was asked, “Did you fire?” Gonzales contends it’s an important distinction since he argues Garcia Zarate didn’t intentionally pull the trigger.

    Yes. I had seen that a few days ago, which is why I have kept saying that his admissions were not clear. “Usted disparó” could convey “you had the gun and it fired” as easily as “you pulled the trigger.” Plus the guy seemed like a ding in the news interview I saw. I should find that and link it here.

    Patterico (115b1f)

  137. Here is the video. He says he “hear a boom boom, three times.” The gun was fired only once. But I guess that interview is where people got the idea he had fired three times.

    Patterico (115b1f)

  138. Or if, as someone said, there was one round in the chamber, then it was fired twice at most. Not three times.

    Patterico (115b1f)

  139. it’s so not fair to judge by appearances

    but it’s hard to see this one adding value huh

    some people don’t you know

    if you plot the curve of people according to how much value they add my understanding is it looks a lot like a bell

    brazen bells!

    what tale of terror now their turbulency tells

    happyfeet (28a91b)

  140. No, that would be se desparo ‘it fired’ seriously how badly can you screw up an interrogation ‘you fired’ is an affirmative response.

    narciso (d1f714)

  141. They should have been more specific, especially with a guy who is so self-evidently a ding.

    Patterico (115b1f)

  142. I care not for the niceties of the standard of evidence as to prior bad acts. He is factually a bad actor with multiple priors. He does not belong on our streets. If he is further so dimwitted as to not understand the dangers of such a weapon, all the more reason to keep him off the streets.

    Yes/ I would have disregarded the specific instructions in this case. I would have been very upfront about my knowledge of him in voir dire, as well. If I was still placed, I would have personally nullified the instruction. He did not merit benefits of factual doubts. Intention? I would not have convicted on 1st, and likely not, 2nd degree. His behavior was clearly reckless, though. YMMV.

    Ed from SFV (3400a5)

  143. The truth is they didn’t care enough to do their diligence, why did they bring up the previous examiner if not to discredit the thing like they tried with Frederick Whitehurst in the first wtc bombing.

    narciso (d1f714)

  144. A jury in another jurisdiction (with different enumerated predicate felony murder offenses) might well have convicted this guy of felony murder. Fair enough. So what? Embrace federalism, purported federalists. This jury in this jurisdiction didn’t see sufficient evidence.

    Leviticus (c7071a)

  145. “Reckless” (under the MPC) = conscious disregard of a substantial and unjustifiable risk.

    “Reckless” at common law (in many jurisdictions) = “depraved heart”

    YMMV as to the usefulness of these definitions, and which is more policy-laden.

    Leviticus (c7071a)

  146. A jury in another jurisdiction (with different enumerated predicate felony murder offenses) might well have convicted this guy of felony murder.

    Could be. California used to allow a second-degree felony murder based on the negligent discharge of a firearm. My understanding is that the option was removed by a California Supreme Court decision in 2009. But if the facts don’t justify an involuntary manslaughter, they probably don’t justify that conviction under that different felony murder law.

    Patterico (115b1f)

  147. I agree. If a jury wasn’t convinced that there was some conscious act that created substantial and unjustifiable risk, this guy was not going to be convicted of anything.

    Like a guy on a Deep South firing range that hands his 10-year-old an Uzi, to disastrous effect. Substantial and unjustifiable risk? Ask the local jury!

    Leviticus (c7071a)

  148. I gotta say, I’m with Trump on this one. Man is high on sleeping pills, claims he was trying to shoot seals (I read the same as DRJ), is flakey about whether or not the gun was deliberately fired or not when it hit a person.

    Plenty of people convicted of murder do not admit to this much. The translation issues don’t seem that powerful to me. ‘Did you fire the gun?’ when questioned about a murder is not that difficult to understand. If you didn’t then you wouldn’t admit you did.

    His credibility on the circumstances is very poor given his record, and I understand why the jury didn’t get to hear his background.

    There’s no evidence Garcia is the guy who stole it; his prints aren’t on the Fed’s car.

    There is evidence he stole it because he had possession of the stolen property and there are no other suspects. A thief saying ‘oh I just found that’ isn’t much of an alibi. If you brought the gun to the pier to dump it, you would dump it. If you were hiding it, you wouldn’t leave it where someone could trip over it.

    I think the problem is I don’t think there’s a reasonable doubt because there’s no reason for the doubt, and this reflects my bias (and why I probably shouldn’t be a juror).

    Kicking this man out of the country is a travesty of justice. Did the family of the victim sue San Francisco? Would they have any grounds to do so? I guess it’s hard to get the point across that it’s negligence to let criminals remain in your jurisdiction, and but-for that policy, Steinle would be alive.

    Dustin (ba94b2)

  149. he looks kinda like a huffer i think but i haven’t spent a lot of time on him

    happyfeet (28a91b)

  150. Like a guy on a Deep South firing range that hands his 10-year-old an Uzi, to disastrous effect. Substantial and unjustifiable risk? Ask the local jury!
    Leviticus (c7071a) — 12/1/2017 @ 10:52 pm

    That was the Deep South state of Arizona. The gun “instructor” was acting in Loco Parentis, yes? He was the one who died. Like if you signed up your kid for wood shop and the instructor was helping the student feed a board through a table saw it killed him. If he first put the blade at max height, removed the guard and spilled marbles and 30W oil on the floor.

    I’d like to know why the Fed didn’t have the gun on their person and how it was secured in the vehicle. Although nothing would happen to them anyway. Federal LEO’s should be able to carry a gun in 98% of this country and anyplace they were barred should have secure storage.

    Pinandpuller (37eab6)

  151. From DRJ’s link @133:

    The warrant issued by the U.S. District Court for the western district of Texas says Zarate was sentenced in Texas on May 12, 2011 to 46 months in prison, followed by three years of supervised release, for illegally re-entering the U.S.

    So he got 82 months (almost seven years) for illegal re-entry under existing law. How tougher than that is Kate’s Law and what difference would it make? F***ing con-men politicos. Passing meaningless laws just to show that they’re doing something.

    nk (dbc370)

  152. Kate’s Law would impose a sentence of a minimum of 10 years for multiple illegal re-entry convictions, with punishment extending up to 25 years if there are also felony convictions. Garcia would be looking at 15 years here.

    DRJ (15874d)

  153. My guess is that Texas federal courts are imposing more severe penalties than other areas. Kate’s law would institutionalize that. We can’t police the entire border, even though sometimes it seems we are.

    DRJ (15874d)

  154. ‘it’s still murder: namely, murder of the second degree.’

    Not according to any dictionary.

    There is very little daylight between your definition of ‘criminally negligent homicide’ and second degree murder. All that’s left is a subjective matter of degree.

    The word ‘murder’ (like the word lying) implies intention (that the killing is premeditated) as defined by any dictionary. Murder must be premediated. Otherwise, why bother inventing the word murder in the first place.

    Steve D (e793b0)

  155. Although I suppose you could argue that if the person knew his act would have a high probability of causing death – it was intended in that respect. (i.e. he intended to commit an act which would cause a 99% probability of death – at this point the argument is becoming strictly semantic.

    Steve D (e793b0)

  156. Although I suppose you could argue that if the person knew his act would have a high probability of causing death – death was intended in that respect. (i.e. he intended to commit an act which would cause a 99% probability of death – at this point though the argument is becoming strictly semantic.

    Steve D (e793b0)

  157. 89. Stephen J. (f77922) — 12/1/2017 @ 1:24 pm

    I have to admit I find it hard to imagine a mechanical failure capable of causing an accidental discharge without at least some corresponding action on the possessor’s part.

    It wouldn’t be an accidental discharge in that sense.

    What I can see is that he put his finger into the trigger to test out how it feels. And then he started to pull the trigger to get an idea of how much pressure he needed to exert to fire the gun.

    He thought that, if he put on no pressure, it wouldn’t move, which is correct of course. So he would increase the pressure until the resistance started to be overcome. He thought as soon as he felt it moving, he would stop.

    But this wasn’t like a water pistol, or maybe some other guns. As soon as it moved a millimeter, it discharged.

    Still, he had pointed down at the street because something in him told him to be a little bit careful.

    For this to be the case, it’s highly unlikely he had possessed the gun for four days.

    That the gun wasn’t stolen right before was my original thought. Then I read this news article that said it was stolen in nearby pier – I had thought it was stolen miles away and maybe while he was still in jail.I wasn’t trusting any of the short summaries, so even an obvious thing like it being stolen while he was in jail was possible and wouldn’t stop people from thinking he had stolen the gun, which I considered very unlikely on general grounds.

    The article seemed to say it was stolen the same day, except that when you studied it, it seemed to be that it was stolen at least three after the shot was fired that killed Kate Steinle!

    Even assuming a botched repair which gives a particular firearm an effective hair trigger, for example, the user would still have to have loaded the weapon, chambered a round, disengaged the safety, and then either carried it in a dangerous manner

    The policeman from whom the gun was stolen testified that he had kept one round in the gun. That would mean that in all the four days, nobody checked, or nobody had any more bullets that the gun could take.

    I wouldn’t even pick up a gun once I realized what it was unless I had checked all of those factors first.

    But you’re familiar with guns. Someone who wouldn’t normally be in any position to possess a gun, legally or not, wouldn’t be too familiar with guns.

    Why isn’t failure to follow the rules of firearm safety considered, by definition, an act of criminal negligence?

    Only drinking too much alcohol maybe is.

    An ordinarily careful person in San Francisco wouldn’t be that wary of guns. Maybe wary enough to point it at the ground, but not so wary as not to try to get the feel of it, and determine how much pressure you needed to put to fire it.

    79. Beldar (fa637a) — 12/1/2017 @ 12:50 pm

    If I’m a handgun thief sitting on a bench in possession of a firearm I’ve just stolen and wrapped in a piece of cloth, and I see a strolling police patrolman coming my way, I very well might leave that damning evidence under the bench while trying to distance myself from the scene as quickly but discreetly as possible.

    I doubt there was a policeman nearby. But there are even better reasons to hide a gun like that. If San Francisco is like some other cities, and possession of a gun is presumptively illegal unless proven otherwise, and there are significant criminal penalties for illegally possessing a gun, a criminal would not want to spend much time carrying a gun around. Searching for weapons is n exception to the 4th amendment’s warrant clause. That’s what “Stop and frisk” was all about. Anti-police activists were trying to get that stop, because evidence of a gun, unlike drugs, cannot normally be excluded in a court of law. So criminals might be in the habit of sharing illegal guns, of which the best kind is one that used to belong to a policeman, and would use “dead drops” to transfer them.

    Sammy Finkelman (e70ce9)

  158. 152. Pinandpuller (37eab6) — 12/2/2017 @ 12:48 am

    I’d like to know why the Fed didn’t have the gun on their person and how it was secured in the vehicle.

    I’m not sure but it may not have been against the rules in that organization at that time not to keep the gun on his person. It was secured by being hidden in backpack behind a seat that was kept in a locked car that was parked in a well lighted area.

    But somebody broke the window of the car.

    Evidently, stealing things from locked cars was a thing going on in San Francisco in 2015. The tourists who often parked in that location didn’t know any better, so they would often leave things worth stealing visible inside a car. Although maybe you can’t steal radios any more from the dashboard.

    153. nk (dbc370) — 12/2/2017 @ 7:46 am

    the warrant issued by the U.S. District Court for the western district of Texas says Zarate was sentenced in Texas on May 12, 2011 to 46 months in prison, followed by three years of supervised release, for illegally re-entering the U.S.

    The three years of supervised release wouldn’t apply, because he was going to be sent to Mexico instead.

    But, first, there was a side-trip to San Francisco, where any fool would know he’d be let go in short order, and out the door. If he had been an American citizen then maybe there would have been some criminal warrant out for his return; or maybe they would have waited another three years before sending him to San Francisco to face the 1988 marijuana possession charge, and at least you’d have the benefit of three years of staying out of trouble before letting him go completely free..

    Sammy Finkelman (e70ce9)

  159. 127. aphrael (e0cdc9) — 12/1/2017 @ 5:25 pm

    There’s no evidence Garcia is the guy who stole it; his prints aren’t on the Fed’s car.

    Somebody else’s is?

    So the argument is: someone else stole it and left it cocked and unlocked and wrapped in swaddling clothes where Garcia found it.

    I’m not saying I believe it — I don’t — but it’s sufficiently *possible* that I’d need evidence showing it to be false, were I to convict.

    That’s actually quote reasonable, if that gun was left them in a “dead drop” type of situation for one criminal to transfer it to another, only Garcia Zarate found it before.

    I would think that of Garcia Zarate was going to play around with or test the gun, or the feel of it, he would have done that most likely shortly after coming into possession of it. At first, in the hysteria the idea was out that he had fired it wildly into the air.

    Sammy Finkelman (e70ce9)

  160. “If anyone needs to be held accountable, it’s them.”

    And just when is THAT going to happen? By their own words, the “San Francisco leftist policymakers” are doubling down on the policies that caused Kate Steinle’s death.

    DN (4c7af4)

  161. Some made a proposal that it be made illegal to leave a gun unattended among other things.

    http://www.nydailynews.com/opinion/u-s-gun-buyback-save-young-lives-article-1.3671037

    Y

    JIM MANLY
    NEW YORK DAILY NEWS

    Saturday, December 2, 2017, 5:00 AM

    ……

    What can we do? A recent report by the Urban League, Everytown for Gun Safety and Mayors Against Illegal Guns offers several concrete proposals that could have helped prevent Tylik’s death.

    First, improve the systems for tracing gun crime to better identify where weapons come from in homicides. This is especially relevant in New York City, where 60% of homicides involve guns.

    Second, require background checks for all gun sales, whether at gun shows or other venues.

    Third, reduce gun thefts by making it a crime to leave a firearm unattended.

    The writer of the Op-ed adds a gun buyback.

    So, anybody that opposes making it illegal to leave a gun unattended would be responsible for Kate Steinle’s death, if the idea had been proposed before? How much jail time should someone get for that? Does it matter if something bad happens as a result, or not?

    Sammy Finkelman (e70ce9)

  162. In the Roy Moore and he Federalist thread, there’s this and a couple of comments:

    https://www.redstate.com/sarah-rumpf/2017/11/30/lied-kate-steinle-case/

    Facts derived from that:

    It seems like he did point it straight and not into the sidewalk – the ricochet took place near Kate Steinle.

    It was also maybe the first time he had a handled a gun.

    His name in the early news reports was an alias (Lopez Sanchez) different than his real name, which is Jose Ines Garcia Zarate.

    This particular gun is prone to firing unintentionally – it has one of the lightest trigger pulls and normally does not have a safety lever but has an unlabeled decocking lever instead.

    A crowd of six men was seen on grainy video near where the gun was fired shortly before Garcia Zarate was there.

    There was political pressure to prosecute this as murder – this I don’t understand since San Francisco has a reputation as a liberal city and in fact it is being criticized from that. Are there different people in the DA;’s office or were people trying to deflect criticism by being very tough on this person, regardless of what the truth was? That’s one reason we have trial by jury.

    Sammy Finkelman (e70ce9)

  163. Link to Wa Po.

    Here

    Ipso Fatso (7e1c8e)

  164. Someone noted in a column in Commentary magazine that the Kate Steinle case is very similar to the Trayvon Martin case, except that it’s people in a different part of the political spectrum who want to say it wrong, in that in both cases there was overcharging due to political pressure and the jury verdict was correct.

    Sammy Finkelman (e70ce9)

  165. 167, yes, who wants to gift-wrap the term “plea bargain” to Real Donald Trump?

    urbanleftbehind (5eecdb)

  166. In the good old days, a Mexican killing a white lady in San Francisco would have been shot down like a dog (not even worth a rope) and his head put on display in a jar.

    nk (dbc370)

  167. I heard they did the same to Greeks in Iowa in roughly the same timeframe.

    urbanleftbehind (5eecdb)

  168. Iowa? Probably thought they were Creeks.

    nk (dbc370)

  169. Doesnt say much, if they drove whitest of white Mormons out as well. In any case, I was a state to the west off..http://en.wikipedia.org/wiki/Greek_Town_riot , though I did hear of Greek dairy operators being colluded out of Iowa and having to return to Chicago.

    Little good it did South side Omaha today, one might wager.

    urbanleftbehind (5eecdb)

  170. I didn’t know about that. I did know that many of the miners machine-gunned by John D. Rockefeller in Colorado were Cretans.

    nk (dbc370)


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